State v. Bolivar

• Decision Date: 27 October 2020
• Docket Number: No. 2 CA-CR 2018-0088,2 CA-CR 2018-0088
• Citation: 477 P.3d 672,250 Ariz. 213
• Parties: The STATE of Arizona, Appellee, v. Ruben BOLIVAR, Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 213

477 P.3d 672

The STATE of Arizona, Appellee,

v.Ruben BOLIVAR, Appellant.

No. 2 CA-CR 2018-0088

Court of Appeals of Arizona, Division 2.

Filed October 27, 2020

Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Acting Section Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee

Scott A. Martin, Tucson, Counsel for Appellant

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Ruben Bolivar appeals from his convictions and sentences for one count of sexual conduct with a minor under fifteen, one count of molestation of a child, and three counts each of sexual assault and sexual abuse. We affirm Bolivar's convictions and sentences.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Bolivar. See State v. Felix , 237 Ariz. 280, ¶ 30, 349 P.3d 1117 (App. 2015). Bolivar is Becca's¹ stepfather, but she believed him to be her biological father until she was fifteen years old. From approximately 2005 to 2015, while Becca was between the ages of four and fifteen, Bolivar committed numerous sexual offenses against her, including touching her breasts and vagina, oral sex, and, after she had turned fifteen, three instances of intercourse.

¶3 Following a nine-day jury trial, Bolivar was convicted of sexual conduct with a minor as alleged in Count Two of the information, sexual assault as alleged in Counts Three, Five, and Six, sexual abuse as alleged in Counts Four, Seven, and Eight, and molestation of a child as alleged in Count Nine.² The trial court sentenced him to life imprisonment, plus a combination of concurrent and consecutive prison terms totaling 68.5 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

¶4 On appeal, Bolivar argues: (1) the trial court erred in denying his motion to preclude the state from referring to Becca as the "victim"; (2) the court erred in failing to individually question jurors as to whether they had seen a newspaper article related to his case; (3) Counts Two and Nine were invalid because they were not charged alternatively to Count One in the original information and the jury was improperly instructed on the law; (4) the evidence was insufficient to show he knew Becca did not consent to the sexual acts underlying Counts Four through Eight; and (5) he was deprived of due process under the former version of A.R.S. § 13-1407(E).³

References to Becca as the "Victim"

¶5 Bolivar first argues the trial court abused its discretion by denying his motion to preclude the state and its witnesses from referring to Becca as the "victim." He asserts that "where the only evidence that a crime has been committed is the uncorroborated testimony of the complaining witness and the defendant maintains his innocence," referring to the complaining witness as the "victim" implies the "charged crimes had been committed before any evidence was taken or verdicts deliberated on."⁴ Bolivar further contends this "resulted in improper vouching for the State's witnesses, depriving [him] of his 14^th Amendment rights to a presumption of innocence and a unanimous jury verdict." We review the court's ruling on a motion to preclude evidence for an abuse of discretion. State v. Gamez , 227 Ariz. 445, ¶ 25, 258 P.3d 263 (App. 2011). However, we review related constitutional challenges de novo. State v. Huerta , 223 Ariz. 424, ¶ 4, 224 P.3d 240 (App. 2010) (addressing discretionary and constitutional issues related to evidence suppression).

¶6 Before trial, Bolivar moved to preclude the state and its witnesses from referring to Becca as the "victim," claiming it is "a term that denotes a certain status under the law," and "[o]nly the jury decides who is the victim of a crime and the use of this term by the State or any of its witnesses invades the province [of] the jury to make such a determination." Instead, Bolivar requested Becca be referred to by her name or as the "complaining witness." The state opposed Bolivar's motion, arguing Becca "is the victim under the Victims’ Bill of Rights, that's the legal term we use to note who she is," and the trial court had clearly instructed the jury that the charges were "only allegations at [that] point and it's up to their determination whether or not they find there's evidence beyond a reasonable doubt as to whether or not these incidents occurred."

¶7 The trial court ultimately denied Bolivar's motion, stating:

So what I'll do in this case is I'm not going to preclude the State from using the word victim. I think that would probably be futile anyway, the prosec[u]tor[ ]s use that phrase so much, even if I ordered the prosecutor not to use it, she would probabl[y] slip up. I don't think it's inappropriate but when it comes up, I will give a limiting instruction to the jury referring to this person as the victim, victim is a legal term of art. As with all the facts in this case, you decide whether or not those acts occurred and whether or not under the law, she should be determined to be a victim. I will give a limiting instruction when it comes up, first time or second time. She is being referred to as the victim, but at the end of the case it's going to ultimately be the jury who decides what the facts are, you'll determine whether these acts occurred as alleged that would make her the victim of the case. But for right now that's how she's going to be referred to.

At trial, the court did not give a specific limiting instruction as to the term "victim," nor did Bolivar make any further requests for such an instruction.

¶8 Bolivar asserts this issue is one of first impression in Arizona and therefore relies on out-of-state authority to support the proposition that it is improper to describe the complaining witness as the "victim" when the issue is whether a crime has been committed. See State v. Albino , 130 Conn.App. 745, 24 A.3d 602 (2011) ; State v. Sperou , 365 Or. 121, 442 P.3d 581 (2019) ; State v. Devey , 138 P.3d 90 (Utah Ct. App. 2006). The state counters that pursuant to Z.W. v. Foster , the trial court maintains broad discretion in determining how to refer to crime victims in court proceedings. 244 Ariz. 478, ¶ 9, 422 P.3d 582 (App. 2018).

¶9 In Z.W. , the trial court denied Z.W.’s "request to preclude reference to her as the ‘alleged victim,’ " and she sought special-action review. Id. ¶ 1. We noted that while the Victims’ Bill of Rights does not expressly specify how to refer to victims in court proceedings, it does impose the constitutional mandate "that every crime victim in Arizona ... be treated throughout the criminal justice process with ‘fairness, respect, and dignity, ... free from intimidation, harassment, or abuse.’ " Id. ¶¶ 4-5 (quoting Ariz. Const. art. II, § 2.1 (A)(1)). And, we ultimately concluded courts enjoy "discretion to assess—on a case-by-case basis—whether a particular reference to a victim undermines the victim's right to be treated with fairness, respect, and dignity under the particular circumstances presented," finding no abuse of discretion in the denial of Z.W.’s motion to preclude use of the term "alleged victim." Id. ¶ 7.

¶10 We conclude the trial court did not abuse its discretion by permitting Becca to be referred to as the "victim." Contrary to Bolivar's contention, Z.W. does not establish that the term "victim" is inappropriate when the defendant disputes whether a crime occurred. Rather, this court stressed that "trial courts should have flexibility in determining how to refer to crime victims during criminal proceedings." Id. ¶ 8. And, Bolivar has presented no binding authority, and we are aware of none, to support his argument that the use of the term "victim" is prohibited when, under circumstances similar to those in this case, the state's key evidence is the testimony of the alleged victim. See State v. Dean , 226 Ariz. 47, ¶ 19, 243 P.3d 1029 (App. 2010) (legal precedent from other jurisdictions not controlling on this court).

¶11 Further, contrary to Bolivar's assertion that "the entirety of the State's case rests on the allegations [of] the accusing witness," Becca's brother testified that he had seen Bolivar touch her breast, and Becca's mother testified that Bolivar had asked Becca, "Did I force you?" when he was confronted with allegations of sexual abuse. Becca's brother also testified he had seen Bolivar go into Becca's room and lock the door on multiple occasions. And, her mother and a detective testified about the pornographic websites found in Bolivar's cell-phone and computer search history, corroborating Becca's claim that Bolivar had shown her pornography.

¶12 Moreover, even were we to assume the state's use of the term "victim" constituted error, any such error was harmless beyond a reasonable doubt. See State v. Leteve , 237 Ariz. 516, ¶ 25, 354 P.3d 393 (2015) (error not reversible if harmless); State v. Romero , 240 Ariz. 503, ¶ 7, 381 P.3d 297 (App. 2016) (in deciding whether error is harmless, question is whether guilty verdict actually rendered was surely unattributable to error). Errors may be cured by jury instructions. See Romero , 240 Ariz. 503, ¶ 19, 381 P.3d 297.

¶13 Here, the trial court instructed the jury that Becca's initials, B.Y.S., are the initials of the "alleged victim," "[e]very defendant is presumed by law to be innocent," and Bolivar had "pled not guilty ... [which] means that the State must prove every part of the charge beyond a reasonable doubt." Further, it instructed that "these are charges only at this point. [Bolivar] has entered pleas of not guilty to all these charges." And, the court informed the jury that "[i]n deciding the facts of this case, [it] should consider what testimony to accept, and what to...